Goodman v. New York Railways Co.

fered by respondent, and it is not clear whether this was intended to explain the transfer to Broadway, instead of to the Fourth Avenue through car, or to justify an absolute refusal to transfer from a “short service” to a Fourth Avenue through car. But in any event the testimony of a foreman (over due objection) as to an alleged rule of the company was incompetent, and the cryptic reason given by him—i. e., “to avoid congestion, for the convenience of passengers”—was valueless.

[3] The question, therefore, arises whether plaintiff had, under section 101 of the Railroad Law, the right to a transfer at Eighth street and Fourth avenue from this “short service” car to a through car on the same line. Although the case of Baron v. N. Y. City Rys. Co., 120 App Div. 134 , 105 N. Y. Supp. 258 (First Department), did not turn ultimately or precisely on this point, four of the members of the court state clearly their respective opinions thereon to an extent which seems to me must determine our decision in the case at bar. Of the five learned Justices, Scott, J., with whom Clark, J., concurred, says that a passenger is entitled to a transfer from a “short service” car to a through car on the same line. Laughlin, J., with whom Lambert, J., agreed, was of opinion that a passenger was entitled to such transfer, unless he should have received actual notice of the intermediate destination of the car before his fare was accepted and have been given an opportunity to alight. In the case at bar, it is not even claimed that the destination of the car was actually made known to the passenger.

The authority of the Baron Case confirms my own view that under the circumstances of the case under review plaintiff was entitled to a transfer further south on the Fourth Avenue through car. I am inclined to believe that Roach v. Brooklyn H. R. R. Co., 119 App. Div. 520 , 104 N. Y. Supp. 219 (Second Department), is a holding to the contrary ; but, even if it be, it cannot affect our conclusions. There is an intimation in Braffett v. Brooklyn, etc., R. R. Co., 204 N. Y. 440 , 443, 97 N. E. 888 , that a passenger in a position similar to that of the plaintiff is entitled to a transfer; but neither the Braffett Case nor the cases which it cites, namely, Bull v. N. Y. C. R. R. Co., 192 N. Y. 361 , 85 N. E. 385 , 19 L. R. A. (N. S.) 778 , and O’Connor v. Brooklyn H. R. R. Co., 123 App. Div. 784 , 108 N. Y. Supp. 471 , make express reference to a “short service” car.

[4] Respondent urges, also, that, as the transfer given to the plaintiff by the first conductor was, on its face, not good for a ride further south on the Fourth Avenue line, he was, in any event, not entitled to ride on the second car which he boarded, and that his recovery for breach of contract of carriage is thereby barred, whatever other remedy he may have. We need not decide whether the form of the transfer slip given to plaintiff sufficiently disclosed its alleged infirmity. See Charbonneau Case, supra, distinguishing Nicholson v. Brooklyn H. R. R. Co., 118 App. Div. 13 , 103 N. Y. Supp. 310 , and Weber v. Rochester, etc., Co., 145 App. Div. 84 , 129 N. Y. Supp. 304 . Transportation was not refused to the plaintiff merely because he failed to obey a reasonable regulation of the company, as in the Monnier Case, infra, and in Mullin v. Long Island R. R. Co., 136 App. Div. 733 , 121 N. Y. Supp.

458 . Plaintiff was ejected from the second car on the theory—which is now urged on this appeal-—that he had no right to continue his journey thereon under any circumstances. But as he did have such right, it follows that he has a cause of action against the defendant for breach of contract of carriage. Monnier v. N. Y. C. & H. R. R. Co., 175 N. Y. 281 , particularly at 288, 290, 67 N. E. 569 , 62 L. R. A. 357 , 96 Am. St. Rep. 619 . It should be noted here again that there was no competent proof in the case at bar of any regulation of the company, and, of course, none as to the reasonableness of such regulation.

[5] Incidentally, respondent urges that this was not a “short service” car, for the reason that Astor Place is a separate terminal. I doubt whether, under the circumstances of this case, respondent’s position would be bettered, even if that were so. But I do not think that the respondent can successfully maintain that the end of this short spur, some 300 feet long, is a separate terminal. Moreover, the very inscription on the car involved in this case, “Astor Place Only,’’ indicates the respondent’s own view of Astor Place, not as a terminal, but as a point on the line at which the cars are turned back—not going all the way along the line, but to Astor Place only.

As the determinative considerations hereinabove reviewed, and other points to which I have not adverted, were adequately presented at the trial below by due objections to evidence, exceptions to the charge, and requests to charge, the judgment must be reversed, and a new trial granted, with costs to appellant to abide the event.

[B] One other point, urged by appellant, remains to be considered. Respondent’s counsel, on the previous trial, had conceded, upon certain- terms, that if judgment were rendered in favor of plaintiff the award of damages might be $500, and plaintiff appellant insists that such concession was binding upon the trial now reviewed. I think the stipulation, by its very terms, shows plainly that it was limited to the trial at which it was given, and is, therefore, no longer binding; but, even if that were not so, the court below at the presenf trial quite properly relieved the respondent from it.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.